FWA 8524
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Kylie Anderson
MELBOURNE, 12 OCTOBER 2012
Application for unfair dismissal remedy - jurisdiction.
 This matter arises from an application filed on 22 March 2012 under s 394 of the Fair Work Act 2009 (the Act) by Ms Kylie Anderson (the Applicant) for relief in respect to the termination of her employment from Victoria Police (the Respondent).
 At the conclusion of the hearing I decided to reject the application for extension of time and secondly dismissed the application on the bases that I was unable to deal with the matter in any case because of the effect of the exclusion from the referral of powers in the Fair Work Constitutional Powers Act 2009 as it relates to the question of unfair dismissal of serving police officers. This is an edited version of the reasons given on transcript.
 I have had the opportunity to read the submissions that were provided by both Victoria Police and the applicant in this matter. I have also had the benefit of considering the further submissions made by the Applicant in the hearing. It is not in contest that the reason for the delay in making the unfair termination is that the applicant believed that she was not able to pursue more than one remedy at the same time, and that she was advised by TPA to use the Police Appeals Board to contest her termination, and that she lodged her unfair dismissal application within 14 days of the end of the Police Appeals Board proceeding. Because the reason for the delay was not in contest, there was no requirement for the applicant to give sworn evidence in these proceedings.
 I am satisfied that the termination of the applicant's employment took place on 12 August 2011 and that the application for unfair dismissal was lodged on 22 March 2012. I am satisfied that the reason for the delay in making the application was that the applicant believed she could not run two cases contesting her termination at the same time, and that she was advised by TPA to use the Police Appeals Board, and that she lodged this application for unfair dismissal within 14 days of the end of the Police Appeal Board proceedings. I do not consider that the reasons for the delay amount to a representative error. The advice that was given to the applicant by TPA to pursue the matter before the Police Appeals Board and to not advise the applicant to pursue unfair dismissal at Fair Work Australia was in all the circumstances sensible advice.
 In that sense, it could not be described as the basis for a representative error. Looking at the criteria in section 394(3) of the Act I have to take into account in determining whether there are exceptional circumstances the reasons for the delay, whether the person first became aware of the dismissal after it had taken effect, any action taken by the person to dispute the dismissal, prejudice to the employer including prejudice caused by the delay, the merits of the application, and fairness as between the person and other persons in a similar position. In respect of when the applicant first became aware of the dismissal, I am satisfied the applicant was aware of the dismissal when it took place on 12 August 2011.
 In respect of the action taken by the applicant to dispute the dismissal, I am satisfied that the applicant did take diligent steps to dispute the dismissal and that was evidenced by the action she took in pursuing the matter before the Police Appeals Board. In respect of the prejudice to the employer, including prejudice caused by the delay, I am satisfied that there would be significant prejudice to the employer given the long period of delay and the fact that the matter has already been through an extensive process at the Police Appeals Board. In respect to the merits of the application for reasons that I will outline shortly, I have significant doubts about the merits of the application, that is, the chances of success of the application.
 I do not believe that fairness between this person and other persons in a similar position is particularly relevant in the circumstances of the case.
 I do not consider that the reasons for the delay in these particular circumstances do constitute exceptional circumstances, particularly given my finding concerning the issue of representative error, or the absence of a representative error. In respect of the merits of the case, this is intrinsically linked to the second jurisdictional ground raised by Victoria Police, which is the issue as to whether or not Fair Work Australia can hear an unfair dismissal application from a serving probationary police officer. It is not in contest that Ms Anderson was a serving probationary police officer.
 In my view, whether Ms Anderson was a probationary police officer or a police officer makes no difference in the circumstances of this case. The Fair Work Constitutional Powers Act 2009, which is commonly known as the Referral Act, delegated certain powers of the state in respect of industrial relations matters to the commonwealth and provided that the Fair Work Act would regulate those matters which would otherwise have been regulated by the state. Section 3 of the Fair Work Constitutional Powers Act 2009 defines a law enforcement officer to include a police officer. Section 5(2) of the Fair Work Constitutional Powers Act 2009 excludes the termination of a law enforcement officer from the referral of powers.
 The issue of the extent to which the exclusion of referral of powers in respect of police officers prevents the commonwealth from acting has been the subject of Federal Court proceedings. Although the Federal Court has found that there are some matters, 1 such as matters related to discrimination, which can be dealt with by Fair Work Australia notwithstanding the exclusion from the referral to provide for the operation of the Fair Work Act, this decision was taken on the basis that it was distinguishable from the matters which were specifically excluded from referral; as unfair termination now is. I consider that a plain reading of the Fair Work Constitutional Powers Act 2009 together with the Federal Court decisions that have been made in respect of this matter, put it beyond doubt that Fair Work Australia cannot hear and determine an application under section 394 for an unfair dismissal remedy in respect of a serving police officer of Victoria Police.
 In my view, it is appropriate to decide that there are no exceptional circumstances which would justify the extension of time within which to make this application. Secondly, in the event that I was wrong about that matter, I would conclude that I was unable to deal with the matter in any case because of the effect of the exclusion from the referral of powers in the Fair Work Constitutional Powers Act 2009 as it relates to the question of unfair dismissal of serving police officers. The application is therefore unable to proceed further. The Section 394 Application for unfair dismissal remedy is dismissed.
1 Dempster v Comrie (2000) 96 FCR 570.
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